People v. Carini

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated November 7, 2016, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant appeals from his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law § 168 et seq. [hereinafter SORA]), contending that the County Court should have granted his application for a downward departure from his presumptive risk level designation.

While a defendant’s response to sex offender treatment may qualify as a ground for a downward departure where the response is “exceptional” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]), here, the defendant failed to establish by a preponderance of the evidence that his response to treatment was exceptional (People v Velasquez, 145 AD3d 924 [2016]; People v Wallace, 144 AD3d 775, 776 [2016]; People v Figueroa, 138 AD3d 708, 709 [2016]). The defendant failed to identify any other mitigating circumstances that are of a kind or to a degree not adequately taken into account by the SORA guidelines (see People v Gillotti, 23 NY3d 841, 861 [2014]). Accordingly, the County Court properly denied the defendant’s application for a downward departure from his presumptive risk level designation.